A Master Builder
It was one of those exquisite accidents I that shape history. In May 1956, U.S. I Attorney General Herbert Brownell assembled a conference on court congestion. Arthur Vanderbilt, chief justice of the New Jersey Supreme Court and the nation's chief advocate of unclogging the dockets, was to be the keynote speaker. But when Vanderbilt fell ill two days before the meeting, he prevailed on a favorite younger colleague to stand in. His name was William J. Brennan Jr. Brennan looked over Vanderbilt's notes and then spoke off the cuff. He was a hit. Four months later, when Sherman Minton of the U.S. Supreme Court announced his retirement, Brownell recommended Brennan to President Dwight Eisenhower, in part because his demographics--a Democrat and a Roman Catholic from the Northeast- would help Ike in the upcoming '66 election. It hardly seemed likely that the 50-year-old Brennan would go on to become a beacon of liberalism. The conservative Eisenhower figured it out soon enough. When asked in 1961 if he'd made any blunders during his administration, Eisenhower replied, "Yes, two. And they're both sitting on the Supreme Court."
The other, of course, was Earl Warren, the towering chief justice who is given credit for leading the judicial revolution that bears his name. But Warren himself acknowledged Bill Brennan as the architect and strategist behind the court's virtual remaking of the Constitution. From the expansion of First Amendment guarantees to the extension of civil rights to the increased protection afforded criminal defendants, Brennan's intellectual gifts and personal charm won him an influence transcending his own views. "He simply is one of the most important figures of the latter half of the 20th century," says Gerald Gunther, a Stanford University law professor.
You wouldn't know it on seeing him. At the high court this spring, during two interviews with NEWSWEEK, the old man, now 84, was sitting behind his large mahogany desk. Stacks of paper-clipped memos almost hid his small frame. Family portraits were scattered around the unadorned office. A tiny American flag was in a pencil jar by the window. The only trappings of power were 486 volumes of "U.S. Reports," the chronicle of court decisions that so often include his name. Brennan is warm, gracious, utterly without pretense--every bit the avuncular figure described by his law clerks (especially the ones with kids who've been to chambers). Some refer to him as "Yoda," given his wise visage--and prominent ears. Though frail, he's as mentally sharp as all his written opinions suggest.
At the time, even after a long winter of flu, Brennan said he was eager to stay on the court for his full term. (Justices are appointed for life.) "I couldn't imagine leaving until the good Lord says otherwise," Brennan said, responding to rumors he would step down. "This has been my life. I must stay." He had been ill before--cancer in 1978 and a stroke in 1979--and even considered retiring, but Justice Thurgood Marshall and other close friends talked him out of it. Age, which Brennan spoke about philosophically, apparently got the better of him. His mild stroke two weeks ago just before taking a North Sea cruise convinced him that the grueling court schedule was too much. And last Friday morning, he notified a heartbroken Marshall and a few others that he was leaving.
Forging coalitions: Since the creation of the Supreme Court in 1789, only four of the 104 justices have served longer than Brennan. In his time--spanning the terms of eight presidents--Brennan witnessed the transformation of American society. Indeed he was responsible for part of it, writing more than 1,200 opinions and having the political acumen for getting five men out of a stubborn nine to agree on something. During the heyday of the Warren court in the 1960s, in case after case, Brennan forged the coalitions that reinvented the Constitution. There was the 1962 decision leading to the "one person, one vote" principle in reapportionment cases, the 1964 ruling giving broad First Amendment protection to newspapers sued for libel by public officials, and the 1967 decision throwing out loyalty tests for teachers. Brennan discounted his role as field general for these judicial landmarks, saying each justice votes for himself. His admirers see that as modesty. "It's called the Warren court," says Paul Gewirtz, a Yale University law professor. "It was really the Brennan court."
With the departure of Warren and such liberals as Hugo Black, the court shifted right in the 1970s. When Ronald Reagan got the chance in the 1980s to mold it, the court's conservatism solidified. Brennan no longer was the master builder of slim majorities, but a cry in the judicial wilderness. In the 1963 term, Brennan noted, he filed not one dissent; in recent terms, he's filed more than 50 each year. "I was much happier when I wasn't writing as many dissents," he said, flashing that elfin smile.
Every term, Brennan still managed to pull a rabbit out of his judicial hat. Just last month he led the court to its decisions striking down a ban on flag desecration and upholding minority preferences for FCC broadcast licenses. He was galled by the court's reading of civil-rights statutes, its loosening of Fourth Amendment restraints on police power, and perhaps most of all its continuing approval of capital punishment. (In his last decision as a justice, Brennan, together, as always, with Marshall, unsuccessfully voted to block a Virginia execution.) Yet there is no bitterness to Brennan. Age brings perspective. In recent years, he was writing for a larger audience: posterity. "I would hope that my ideas prevail--if not at the court, then in the country," he said. "I think they do. You know, just recently I've gotten 10 or 12 notes from parents saying they named their kids after me. You tell me what that means."
As a justice for 33 years, Brennan was characterized many ways. To these who revered him, he was the conscience of the court and the guardian of the Bill of Rights. To his critics, he was the worst kind of judicial activist, willing to substitute his whims for the legislated preferences of the majority. Fundamentally, though, he was something quite American--an optimist and a dreamer. In an interview with The New Yorker earlier this year, he said he passionately believed in "the age-old dream" that one day people everywhere would not be denied their individual dignity and freedom.
He recounted a favorite story. "The dream, though always old, is never old, like the Poor Old Woman in Yeats's play 'Cathleen ni Houlihan.' 'Did you see an old woman going down the path?' asks Bridget. 'I did not,' replies Patrick, who came into the house just after the old woman left it. 'But I saw a young girl and she had the walk of a queen'." The same could be said of the legacy of William J. Brennan Jr.
In the majority or in dissent, Brennan, the court's champion of civil liberties, argued with logic and passion.
Debate on public issues should be uninhibited, robust, and wide-open, and that . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
New York Times Co. v. Sullivan (1964) Majority
Our nation has had a long and unfortunate history of sex discrimination . . . rationalized by an attitude of "romantic paternalism" which, in practical effect, put women not on a pedestal, but in a cage.
Frontiero v. Richardson (1973) Majority
If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.
Eisenstadt v. Baird (l972) Majority
The reverberations of injustice are not so easily confined . . . The way in which we choose those who will die reveals the depth of moral commitment among the living.
McCleskey v. Kemp (1986) Dissent
